Copyright (c) 2011 All rights reserved. http://works.bepress.com/craig_martin Recent documents in Craig Martin en-us Tue, 18 Jan 2011 01:31:05 PST 3600 http://works.bepress.com/craig_martin/4 http://works.bepress.com/craig_martin/4 Sun, 16 Jan 2011 08:30:19 PST This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in mind, but address issues raised in recent debates and calls for reform of executive war powers in various liberal democracies.The article begins by looking at the causes of war, which operate at the decision-making level, at the level of state structure, and at the level of the international system. The history of the development of legal constraints on the use of force, however, reveals that while there was an apparent understanding of the need to address the causes of war at both the domestic and international level in the pre-modern period, since the early twentieth century we have almost exclusively relied upon the jus ad bellum regime in international law to constrain armed conflict. Constitutional democracy has spread throughout the world, and international law is increasingly implemented within the domestic legal systems of the world. Yet in most liberal democracies in the world there has been little domestic implementation of the principles of the jus ad bellum regime, the very core of the international law system, or further development of the constitutional principles creating the separation of powers in relation to the decision to use force.The article reviews the theoretical support for the three elements of the Model. Various strands of international law compliance theory, as well as aspects of constitutional theory, provide support for the idea that the incorporation of jus ad bellum principles would further the achievement of both constitutional goals, and enhance compliance with the international law regime. In short, such incorporation would engage the causes of war at the domestic level, and strengthen the compliance with the laws that engage the causes of war at the international level.Similarly, the requirement for legislative approval of decisions to use force would further the realization of the separation of powers envisioned by Madison and Kant. Bringing to bear the representative and oversight functions of the legislature would not only enhance democratic accountability, but would engage the domestic causes of war in significant ways, reducing the factors that lead democracies to wage war with illiberal states, while not undermining the features that help give rise to the democratic peace.Finally, the establishment of explicit jurisdiction and standing for judicial review of the process would help ensure that the other branches comply. The courts would not be second-guessing the substance of executive decision-making, and such judicial review of the process is entirely consistent with theories regarding the role courts play in resolving the agency problems inherent in the democratic system. All three elements of the Model operate in mutually reinforcing ways to engage the causes of war at all three levels, thus reducing the likelihood of illegitimate uses of armed force. The analysis includes some discussion of the likely objections to the Model and its theoretical assumptions. Craig Martin Laws of War and Use of Force International Law Comparative Law Legal History Constitutional Law http://works.bepress.com/craig_martin/3 http://works.bepress.com/craig_martin/3 Sat, 06 Mar 2010 13:21:15 PST There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review of the theoretical foundation of the right, and the Canadian and American approaches, illustrates the inadequacy of the “unreasonable discrimination” test traditionally employed by the Japanese courts, and makes normative arguments for modification of the Japanese doctrine. While there are other significant factors that explain the Court’s failure to enforce constitutional rights in Japan, the article suggests that the weakness of the doctrine has been an important factor. The article also examines evidence that there is a more sophisticated doctrine emerging, beginning with strong dissents in earlier Supreme Court judgments, through to the majority opinion of the Supreme Court in a 2008 judgment, all of which reflect an analytical framework that conforms to the standard proportionality analysis. The article argues that this trend should be encouraged, and one means of doing so would be for Japanese scholars to widen their comparative analysis of constitutional jurisprudence beyond that of the United States, as the American approach is not a helpful model for Japan. Finally, the article discusses what the comparative analysis of the Japanese experience may reveal about the American approach to equality rights, constitutional borrowing, and constitutional migration. Craig Martin Comparative Law Constitutional Law Japanese Law http://works.bepress.com/craig_martin/2 http://works.bepress.com/craig_martin/2 Thu, 06 Nov 2008 10:58:50 PST There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance with that regime of international law.This paper examines the case of Japan’s Constitution to determine the extent to which its war-renouncing provisions incorporated, and are consistent with, international law principles on the use of armed force, and whether the provisions operated to effectively constrain government policy. It concludes that the drafters of the Constitution did incorporate international law principles from jus ad bellum in Art. 9(1), though they also grafted on sui generis prohibitions and rules from jus in bello in Art. 9(2) as well, which complicates the story. The provision was embraced in the ratification process, and became the source of powerful constitutive norms that have helped shape Japan’s sense of identity. The paper examines the interpretation of Art. 9, as informed by international law, and concludes that despite deep conflicts over competing narratives and understandings of the provision, the long-standing government interpretation of the provision is consistent with Japan’s obligations under the jus ad bellum regime. In looking at the operation of Art. 9, the paper finds that despite the early use of Art. 9 by governments as a pretext behind which it could pursue desired policy objectives, the provision did operate to effectively constrain government policy in times of apparent crisis. During the Gulf War in particular, Art. 9 effectively bound a straining government to the mast, preventing Japan’s participation in the war. It did so not only in its operation as a legal norm, effectively enforced by the Cabinet Legislation Bureau, but also as a powerful constitutive and social norm. As such, the experience of Japan with Art. 9 provides support for the argument that it is feasible to incorporate principles of jus ad bellum into national constitutions, so as to effectively constrain government policy with respect to engaging in armed conflict. Broader arguments as to why that might be desirable, or whether it has served Japan well or ill, are left for another day. Craig Martin Laws of War and Use of Force International Law Comparative Law Legal History Constitutional Law